1. This second appeal arises out of a suit brought by the plaintiff as the malik of the village to eject the defendants Nos. 1 to 4 as trespassers. We are now only concerned with defendant No. 4. The Munsif in the first Court held that the dependants had failed to prove any tenancy, or rather the plaintiffs's title as zemindar has been admitted and proved, and, therefore, gave a decree to the plaintiff. In appeal the learned Additional District Judge has held that the defendant, who is the widow of the original occupancy raiyat, has established her title to the disputed land as occupancy tenant and, therefore, the plaintiff's suit must fail.
2. It appears that the defendant No. 4 was the widow of the original tenant, Dular Chand, and in the view we take of the case it is unnecessary to consider the questions that have been incidentally argued, whether the holding of 1 bigha 18 cottahs forms a complete raiyati holding in the plaintiff's tukhta and whether there; is a custom of transferability in the village. We were at first inclined to think that these questions would have to be decided, but in the simple view of the case that the widow made a gift in absolute title and permanently to one Gajadhar Mahton, who enjoyed this piece of land and other portions of Dular Chand's holding for nearly three years, and that on his death the widow resumed these lands without any legal title whatever, certainly not as the heir of Gajadhar, it is difficult to see how the learned Judge's finding, that Sheoruttan as widow of Dular Chand has established her title to the disputed land, can be supported. By the bamliknama she lost all right to the land that she gave to Gajadhar, and she has, as the learned Judge rightly points out, now to show how she again became the tenant of the plaintiff. By merely occupying the land upon the death of Gajadhar without ostensible heirs she could not acquire any right of tenancy in this land. She is, therefore, in this view of the case a person who is upon the zemindar's land without any subsisting title and, therefore, liable to ejectment and it being found that plaintiff is sole landlord of the piece of land in suit, he is entitled to succeed.
3. In this view the appeal must be decreed. The judgment and decree of the lower Appellate Court must be set aside and those of the Munsif restored with costs in all Courts.